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ELRCDismissedNot stated in judgment· [2024] KEELRC 2144 (KLR)

Agure & 6 others v Kenya Railways Corporation & 7 others (Employment and Labour Relations Petition E049 of 2024) [2024] KEELRC 2144 (KLR)

Employment and Labour Relations Court (implied; court not expressly named in judgment)
31 July 2024
AMAnna Ngibuini Mwaure
3,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed former employees' challenge to their dismissal over fake certificates, ruling they had to prove their qualifications were genuine — and didn't.

What this practically means

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Executive summary

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The Petitioners/Applicants, former employees dismissed from the 1st Respondent's service following verification of their academic and professional certificates, filed a Notice of Motion seeking conservatory orders restraining the Respondents from punishing, harassing, prosecuting or recovering assets from them, orders compelling reports on the hiring and verification processes, payment of employment benefits, ICT risk assessment audit reports, and certification of the Petition for hearing by an uneven-number bench of judges appointed by the Chief Justice. The 1st Respondent explained that pursuant to the 2nd Respondent's directive of 19th October 2022, it sought validation of certificates from the examining bodies (6th, 7th and 8th Respondents), which reported the Applicants' certificates inauthentic or unregistered; disciplinary hearings were conducted and the Applicants dismissed. The 4th Respondent issued an advisory against processing benefits for persons who gained employment through fraudulent certificates and referred matters to the DCI. The court applied the principles for conservatory orders from Gatirau Peter Munya, Invesco Assurance and Board of Management of Uhuru Secondary School, and the prima facie case standards in Mirugi Kariuki, Re Bivac and Naftali Ruthi Kinyua (citing American Cyanamid). It held the Applicants established no prima facie case, having adduced no evidence that the verification process was prejudicial or that their certificates were genuine; the burden had shifted to them, and the 1st and 4th Petitioners had resigned. The prayer for a three-judge bench was refused for lack of a supporting application and any demonstrated substantial question of law. All prayers in the motion were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Applicants established a prima facie case for conservatory orders

Holding

No prima facie case established; the Applicants merely narrated the Respondents' actions without evidence of illegality or prejudice

Reasoning

The court applied the conservatory-order principles from Gatirau Peter Munya and Board of Management of Uhuru Secondary School, and the prima facie case standard from Mirugi Kariuki and Re Bivac. It found the Applicants produced no evidence that the certificate verification was opaque or prejudicial, nor that their certificates were genuine; failure to rebut the examining bodies' findings was fatal.

p. 6
02

Burden of proof regarding authenticity of academic certificates

Holding

Once examining bodies reported the certificates inauthentic, the evidential burden shifted to the Applicants

Reasoning

Relying on Kenya Ports Authority v Fadhil Juma, the court held that a failure to respond to or rebut findings of forged documents justified dismissal and discharged the employer of the burden of proving gross misconduct. The Applicants did not produce certificates validated by the examining bodies.

p. 7
03

Whether an uneven-number bench should be empanelled under Article 165(4)

Holding

Refused; the Petition demonstrates no substantial question of law and no supporting application was filed

Reasoning

The court found no clarity on what issue warranted an uneven panel appointed by the Chief Justice, noting the 4th Respondent's grounds of opposition that the Petition raised no substantial question under Article 165(3)(b)(d) and no novel point.

p. 8

Legal principles established

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  • Once examining bodies indicate certificates are not genuine, the burden shifts to the employees to prove their certificates are authentic
  • A prima facie case requires evidence, not mere assertions, that a public body acted illegally, unfairly, unlawfully or ultra vires

Court orders

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  1. 1.All prayers (1-19) in the notice of motion are not merited and are dismissed
  2. 2.Each respective party to meet their own costs
Jurisdiction invoked
Articles 165(3)(b)(d) and 165(4) of the Constitution (invoked in the parties' submissions on empanelment); original petition jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agure & 6 others v Kenya Railways Corporation & 7 others (Employment and Labour Relations Petition E049 of 2024) [2024] KEELRC 2144 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2144/eng@2024-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.